D.J. Tice: Skilled politician's latest trick finds its way to court

  • Article by: D.J. TICE , Star Tribune commentary editor
  • Updated: January 6, 2010 - 5:37 AM

At issue: The process of exercising power as the governor did -- with unallotment. As a tactic, it was indeed untested. But never count Pawlenty out.

Tim Pawlenty's governorship has long been a high-wire act -- a series of daredevil maneuvers that go wrong as often as not, leaving him wobbling over a perilous chasm until he abruptly regains his balance, smiles mischievously at the crowd and strides fearlessly forward again.

So don't bet against Pawlenty righting himself even after last week's stumble, when a judge disqualified the governor's single-handed budget-balancing stunt under his disputed "unallotment" authority.

Recall just a few of the thrills and near-spills:

•During his first run for governor in 2002, Pawlenty cooked up a clever cooperative advertising plan with the state Republican Party. The state Campaign Board ruled it illegal and slapped his campaign with a huge $600,000 penalty just weeks before the election. The candidate disarmingly accepted the verdict and won anyway.

•In 2005, budget negotiations failed and Pawlenty staggered into a partial government shutdown. He ended it with a new tax on tobacco which, with a grin and a shrug, he insisted on calling a "fee" (and thus no violation of his signature no-new-taxes pledge). Everyone guffawed, but he got away with it.

•In 2008, Pawlenty ran briskly for the chance to be John McCain's vice presidential running mate. Embarrassingly passed over, Pawlenty has used his bridesmaid turn to fuel his own national aspirations.

This new jam is worthy of Pawlenty's Houdini-like talents for extricating himself from trouble. Ramsey County Judge Kathleen Gearin has ruled that the governor violated the state Constitution last summer after he and the DFL-dominated Legislature failed to agree on how to fix the state's badly unbalanced budget. Instead of calling a special session to continue negotiations, Pawlenty used his authority under an old and (until recently) seldom-used law to reduce state spending on his own through so-called "unallotmets."

Pawlenty says he will appeal Gearin's ruling, and he may have a case. A higher court has previously ruled the unallotment power itself constitutional. But Gearin found fault with "the specific manner" in which Pawlenty used unallotments last year -- imposing them at the start of a new budget period, because of failed negotiations with the Legislature, rather than in response to a surprise revenue shortfall later on. This unprecedented way of using unallotments, she said, "trod upon the constitutional power of the Legislature, and the Legislature alone, to make laws ..."

One would be remiss, in the face of any "specific manner" argument, not to note the estimable commentator Michael Barone's oft-quoted axiom: "All process arguments are insincere." That is, whenever someone insists that they aren't objecting to the thing that was done, but only to the way it was done -- well, keep your guard up.

That said, the constitutional "separation of powers" is a process principle of real importance. The trouble for Gearin's ruling is not that the specific rules she devised for using unallotments are unreasonable -- they aren't -- but that they are so specific, when the statute creating the power is rather vague. But the trouble for Pawlenty may be that it's possible the whole law could (and should) be thrown out before this is over.

And yet, is it really true that "the Legislature, and the Legislature alone," has the power to make laws? Except in those rare instances when it can muster a two-thirds override majority in both houses, the Legislature can't make any law the governor disapproves; he is a full lawmaking partner nearly all of the time. That's why stalemates are so common.

What's more, the state Constitution itself gives the governor a power the president of the United States lacks -- a line-item veto, which isn't so very different from unallotments. It is the power to strip spending items out of enacted appropriations without vetoing the whole bill -- the power, in a sense, to rewrite the law.

So is it really clear that the more flexible rewriting allowed through unallotment is abhorrent to the Constitution? Does the fact that a line-item veto can be more easily overridden than an unallotment make the difference?

The state Supreme Court will have to untangle all this. Pawlenty's complaint that the courts shouldn't insert themselves into a "political dispute" is unrealistic; the case has come before them. But courts should be realistic about the arena they're judging.

When Gearin declared in her ruling that the unallotment power "is not meant to be used as a weapon ... in budget negotiations" she seemed to be calling for a kind of civics-class purity that is simply not the way things work at the State Capitol.

Those of us who have covered many legislative sessions have lost countless hours of our lives watching all factions use every power and privilege and parliamentary technicality at their disposal to manipulate, intimidate, obstruct and sabotage their opposition.

Unattractive as this ruthless use of power can be, politicians do it in the end in pursuit of the policies they think best for Minnesota.

Pawlenty thinks tax increases would be bad for the state; DFLers disagree. That's what this is about.

What's clear is that all concerned need to work quickly on a plan of escape from this tight spot -- not for Pawlenty's sake, but the state's. Every day that passes makes the budget problem tougher to solve.

D.J. Tice is at dtice@startribune.com.

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